Assigned on Briefs November 1, 2016
from the Criminal Court for Shelby County No. 98-06702,
99-02504, 99-02505 Glenn Ivy Wright, Judge
defendant, Gregory L. Allen a.k.a. Michael Taylor, appeals as
of right from the Shelby County Criminal Court's denial
of his Tennessee Rule of Criminal Procedure 36.1 motion to
correct an illegal sentence. The defendant contends that the
trial court erred in concluding that Rule 36.1 relief was not
available because the alleged illegal sentence expired prior
to the filing of the motion. Following our review, we affirm
the trial court's denial of the defendant's Rule 36.1
R. App. P. 3; Judgment of the Criminal Court Affirmed
J. Montierth, Memphis, Tennessee, for the appellant, Gregory
Herbert H. Slatery III, Attorney General and Reporter; Clark
B. Thornton, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Lora Fowler, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER, JUDGE
March 9 and March 13, 1998, the defendant committed three
separate offenses, including one count of aggravated robbery
and two counts of criminal attempt of especially aggravated
robbery, to which he pled guilty on August 28,
2000. While out on bail for the March offenses,
the defendant committed a subsequent aggravated robbery, to
which he also pled guilty on August 28, 2000. Upon entering the
guilty pleas for the above-referenced offenses, the trial
court sentenced the defendant as a Range I, standard offender
to an effective sentence of eleven years.
21, 2015, the defendant filed a pro se Motion to
Correct Illegal Sentence pursuant to Rule 36.1 of the
Tennessee Rules of Criminal Procedure. The defendant argued
the trial court erred in ordering the sentence for the
subsequent aggravated robbery, Case No. 00-08311, to be
served concurrently to the three March offenses in Case Nos.
98-06702, 99-02504, and 99-02505. Specifically, the defendant
argued the trial court's sentencing violated Rule 32 of
the Tennessee Rules of Criminal Procedure, which
"requires consecutive sentences" for felonies
"committed while the defendant was released on bail and
the defendant is convicted of both offenses." Tenn. R.
Crim. P. 32 (c)(3)(C). On January 15, 2016, relying on our
Supreme Court's recent decision of State v.
Brown, the trial court dismissed the defendant's
motion for failure to state a colorable claim as the
defendant's sentences expired prior to the filing of his
motion. 479 S.W.3d 200, 211 (Tenn. 2015). This timely appeal
appeal, the defendant contends that the trial court erred in
denying his Rule 36.1 motion to correct an illegal sentence.
The defendant concedes that all of his sentences have expired
and that our Supreme Court has recently held that Rule 36.1
"does not authorize the correction of expired illegal
sentences." However, he argues that "[b]ecause [the
defendant's] Motion to Correct Illegal Sentence was
pending when State v. Brown was decided by the
Tennessee Supreme Court, it should not be foreclosed because
of a subsequent change in the law." The State responds
that the defendant's motion is without merit under the
"binding authority" of Brown as the
defendant's challenged sentence has expired. After our
review, we agree with the State.
36.1 motion provides defendants with a remedy separate and
distinct from habeas corpus or post-conviction relief.
See State v. Jonathan T. Deal, No.
E2013-02623-CCA-R3-CD, 2014 WL 2802910, at *2 (Tenn. Crim.
App. June 17, 2014). At the time the defendant filed his
motion, Rule 36.1 provided that either the defendant or the
state could "at any time" seek the correction of an
illegal sentence. Tenn. R. Crim. P. 36.1 (2013). The rule
defined "illegal sentence" as "one that is not
authorized by the applicable statutes or that directly
contravenes an applicable statute." Id.
"[A] sentence ordered to be served concurrently ...